About Precautionary Measures

The mechanism for precautionary measures is established in Article 25 of the Rules of Procedure of the IACHR. The Rules of Procedure establish that, in serious and urgent situations, the Commission may, on its own initiative or at the request of a party, “request that a State adopt precautionary measures. Such measures, whether related to a petition or not, shall concern serious and urgent situations presenting a risk of irreparable harm to persons or to subject matter of a pending petition or case before the organs of the inter-American system.” The measures may be of a collective nature to prevent irreparable harm to persons due to their association with an organization, a group, or a community with identified or identifiable members.

The Rules of Procedure establish that the granting of such measures and their adoption by the State shall not constitute a prejudgment on the violation of the rights protected by the American Convention on Human Rights or other applicable instruments. On August 1, 2013 the amended Rules of Procedure entered into force and established that "the decisions granting, extending, modifying or lifting precautionary measures shall be adopted through reasoned resolutions."

The Inter-American Commission wishes to warn that over the years a consolidated practice has developed, according to which it is considered that precautionary measures is not the suitable mechanism to address requests mainly related to alleged violations of the rights to due process and fair trial, and that domestic legal frameworks, the American Convention and other applicable instruments, among other topics and related situations are compatible in the abstract. In addition, the IACHR believes it is worth to say that throughout the years it has dismissed requests for precautionary measures that are related to the payment of compensations or to economic embargos in civil or commercial matters, dismissals from private or public institutions, among other issues of that nature. In fact, the IACHR has analyzed a wide variety of matters in which no precautionary measures apply and, in cases where a petition was submitted, it chose to analyze the information through the System of Individual Petitions.

The history and legal framework of precautionary measures

The inter-American human rights system has used precautionary measures for over three decades, and has served as a tool for protecting the basic rights of the people of the 35 states that are subject to the Inter-American Commission’s jurisdiction. The IACHR’s authority to request urgent measures or order precautionary measures is reflective of a common practice in international human rights law. In the particular case of this region, it has been invoked to prevent and protect against potential serious and irreparable harm to persons or groups of persons who are in imminent peril. The Commission has thus been performing its assigned mandate under Article 106 of the OAS Charter, which is “to promote the observance and protection of human rights” and has also been helping the States perform their ineluctable and abiding duty, which is to protect human rights. The precautionary measures mechanism has shown it effectiveness and has been recognized by the beneficiaries, the OAS member states, the users of the inter-American system, and the human rights community as a whole.

Precautionary measures are frequently used in international law. The principal international courts and treaty-based bodies are authorized to order precautionary measures so that their decisions and the protection they are intended to afford are not mere abstractions. Since its establishment, the Commission has requested protective measures from the States, which are urgent measures the States must take to avoid irreparable harm to the beneficiaries’ life or personal integrity. In the history of precautionary measures within the inter-American system, the IACHR’s 1980 Regulations (as they were then called in English) established a formal procedure for this mechanism. Article 26 of the then Regulations provided that “provisional measures” were called for “[i]n urgent cases, when it becomes necessary to avoid irreparable damage to persons.” The formal establishment of this mechanism within the Commission’s Rules of Procedure and its gradual development through application in practice fit the pattern by which the inter-American human rights system has traditionally cultivated its mechanisms of protection. This article follows from the IACHR’s duty to ensure compliance with the commitments undertaken by the states parties, a duty set forth in Article 18 of the Commission’s Statute and Article 41 of the American Convention, and is based on the states’ general obligation to respect human rights and to ensure their free and full exercise to all persons subject to their jurisdiction (Article 1 of the American Convention), to adopt legislative and other measures necessary to give effect to those rights (Article 2), and to comply in good faith with the obligations undertaken in the Convention and the OAS Charter. The states themselves have frequently acknowledged how vital precautionary measures have been to ensuring the effective observance of human rights in very serious and urgent circumstances.

Recognizing the intrinsic value of the work that the Inter-American Commission performs, the OAS General Assembly has encouraged the member states to follow up on the Commission’s recommendations and precautionary measures. When the General Assembly adopted the Inter-American Convention on Forced Disappearance of Persons in 1994, the member states acknowledged how effective precautionary measures were for purposes of examining allegations of this nature.

The system of precautionary measures has been a feature of the Commission’s Rules of Procedure for over 30 years. The most recent amendment of the Rules of Procedure took effect on August 1, 2013. Article 25 describes the procedure for precautionary measures (Rules of Procedure).

Precautionary measures: their use as a means of ensuring observance of fundamental rights and preventing irreparable harm

In the last 35 years, precautionary measures have been invoked to protect thousands of persons or groups of persons at risk by virtue of their work or affiliation. They include human rights defenders, journalists, trade unionists, vulnerable groups such as women, children, Afro-descendant communities, indigenous peoples, displaced persons, LGTBI communities and persons deprived of their liberty. They have also been used to protect witnesses, officers of the court, persons about to be deported to a country where they might be subjected to torture or other forms of cruel and inhuman treatment, persons sentenced to the death penalty, and others.

Precautionary measures serve two functions related to the protection of fundamental rights recognized in the provisions of the inter-American system. They serve a “precautionary” function in the sense that they preserve a legal situation brought to the Commission’s attention by way of cases or petitions; they also serve a “protective” function in the sense of preserving the exercise of human rights. In practice, the protective function is exercised in order to avoid irreparable harm to the life and personal integrity of the beneficiary as a subject of the international law of human rights. Precautionary measures have, therefore, been ordered for a wide array of situations unrelated to any case pending with the inter-American human rights system.

In the case of the precautionary function, the measures ordered may be intended to prevent execution of judicial, administrative or other measures when it is alleged that their execution could render the IACHR’s eventual decision on an individual petition moot. The kinds of situations the IACHR has had occasion to address to preserve the subject of a petition or case have included, inter alia, requests to suspend deportation or extradition orders when there is a risk that the individual being deported or extradited might suffer torture or other cruel and inhuman treatment in the receiving country; situations in which the IACHR has urged a State to suspend application of the death penalty; among other similar situations.

The Commission’s examination of requests seeking precautionary measures looks at the specifics of each situation. Hence, the Commission’s analysis cannot be governed by strict criteria that must apply to each and every case; instead, it has to look at the nature of the risk and the harm that the precautionary measure seeks to avert.

Inter-American Commission wishes to warn that over the years a consolidated practice has developed, according to which it is considered that precautionary measures is not the suitable mechanism to address requests mainly related to alleged violations of the rights to due process and fair trial, and that domestic legal frameworks, the American Convention and other applicable instruments, among other topics and related situations are compatible in the abstract. In addition, the IACHR believes it is worth to say that throughout the years it has dismissed requests for precautionary measures that are related to the payment of compensations or to economic embargos in civil or commercial matters, dismissals from private or public institutions, among other issues of that nature. In fact, the IACHR has analyzed a wide variety of matters in which no precautionary measures apply and, in cases where a petition was submitted, it chose to analyze the information through the System of Individual Petitions.

In compliance with their international obligations, States must provide effective protection to prevent the risk from materializing. The parties are in the best position to know what type of tangible or other measures are called for to address the situation and prevent further danger.

The IACHR has various tools at its disposal for follow-up and monitoring of precautionary measures: exchanges of communications; working meetings or hearings convened during the IACHR’s sessions; follow-up meetings during in loco or working visits by the Commission or the country rapporteurs; press releases, thematic reports or country reports.

The Commission welcomes the States’ positive response to the precautionary measures. In carrying out the Commission’s requests for precautionary measures, the States have ordered specific protection measures for beneficiaries (for example, bodyguards, security at office buildings, direct lines of communication with the authorities, protection of ancestral territory, and others), taking into account the opinion of the beneficiary and the beneficiary’s representative; their active participation by supplying information requested by the IACHR or participating in working meetings or hearings held to follow up on precautionary measures; creating inter-institutional working groups to implement the protection measures requested by the inter-American system; and introducing compliance with precautionary measures into their case law and legislation.